Sylvain Vite´*
Sylvain Vite¤ is legal advisor in the Legal Division of the International Committee of the Red Cross.
Abstract
Although international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations which fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally. A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next. By proposing a typology of armed conflicts from the perspective of international humanitarian law, this article seeks to show how the different categories of armed conflict anticipated by that legal regime can be interpreted in the light of recent developments in international legal practice. It also reviews some actual situations whose categorization under existing legal concepts has been debated.
* The views expressed in this article reflect the author’s opinions and not necessarily those of the ICRC.
The author would like to express his sincere gratitude to his colleagues in the ICRC’s Legal Division who contributed to the ideas developed in this article, especially to Laurent Colassis, Tristan Ferraro, Jean-Marie Henckaerts and Kathleen Lawand.
Introduction
Although international humanitarian law has as its aim the limitation of the effects of armed conflict, it does not include a full definition of those situations that fall within its material field of application. While it is true that the relevant conventions refer to various types of armed conflict and therefore afford a glimpse of the legal outlines of this multifaceted concept, these instruments do not propose criteria that are precise enough to determine the content of those categories unequivocally.
A certain amount of clarity is nonetheless needed. In fact, depending on how the situations are legally defined, the rules that apply vary from one case to the next.
The legal regimes that need to be taken into account are thus not always the same and depend on whether the situations constitute, for example, an international or a non-international armed conflict. Similarly, some forms of violence, referred to as
‘internal tensions’ or ‘internal disturbances’, do not reach the threshold of applicability of international humanitarian law and therefore fall within the scope of other normative frameworks.
This article proposes a typology of armed conflicts from the perspective of international humanitarian law. It sets out, first, to show how the different cat-egories of armed conflict anticipated by that law can be interpreted in the light of recent developments in international legal practice. In that respect, it is appropriate to refer to the conceptualization efforts relating firstly to the law of international armed conflict and secondly to the law of non-international armed conflict. This article then goes on to examine various controversial cases of application. The reality of armed conflict is actually more complex than the model described in international humanitarian law – to the extent that today some observers question the adequacy of the legal categories.
The law of international armed conflict
The history of the law of international armed conflict shows that the field of ap-plication of this legal regime has been progressively extended as treaty law devel-oped. Whereas a narrow formalistic concept of war was predominant initially, the reform of the system with the revision of the Geneva Conventions in 1949 gave precedence to a broader approach, based on the more objective concept of armed conflict. Moreover, that extension was subsequently taken up with the adoption of Additional Protocol I in 1977. That instrument added another type of conflict to the field of the law of international armed conflict, that of wars of national liber-ation. This legal regime also comprises a specific body of rules whose field of ap-plication is determined on the basis of an autonomous concept, that of occupation.
War and international armed conflict
By virtue of common Article 2(1), the 1949 Geneva Conventions apply to ‘all cases of declared war or of any other armed conflict which may arise between two or
more of the High Contracting Parties, even if the state of war is not recognized by one of them’.1 The situations referred to here are conflicts between States. The
‘High Contracting Parties’ mentioned in this text are sovereign entities. Depending on the case in question, these situations may take the form of a direct conflict between States or of intervention in a previously existing internal conflict. In the latter hypothesis, the conflict is ‘internationalized’. That is the case if a foreign Power sends troops into a territory to support a movement opposing the local government. Intervention may also take place by proxy when that Power merely supports and guides the uprising from a distance.2In that case, it is then vital to determine the level of control that makes it possible to classify the armed conflict as international. Not every form of influence necessarily leads to the conflict becom-ing internationalized. On that point, the International Criminal Tribunal for the former Yugoslavia (ICTY) pointed out that ‘control by a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however, does not go so far as to include the issuing of specific orders by the State, or its direction of each individual oper-ation’.3The criterion of ‘overall control’ is achieved when the foreign State ‘has a role in organising, co-ordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group’ (emphasis added).4Involvement must therefore go beyond mere logistical support, but that involvement does not imply that everything done by the group concerned is directed by the State taking part from a distance.
The situations referred to in Article 2(1) common to the 1949 Geneva Conventions are viewed from the twin viewpoints of formalism and effectiveness.
1 The same field of application was also retained for other instruments of international humanitarian law, in particular Additional Protocol I (see Art. 1(3)).
2 International Criminal Tribunal for the former Yugoslavia (ICTY),Prosecutorv.Tadic, Case No. IT-94-1-A, Judgment (Appeals Chamber), 15 July 1999, para 84: ‘It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.’
3 Ibid., para 137. On this point, see also International Court of Justice (ICJ),Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovinav.Serbia and Montenegro), Judgment,ICJ Reports 2007, 26 February 2007, para 404. Without adopting a definitive position on the matter, the Court accepted that the criterion of overall control may be ‘applicable and suitable’ as a means of determining whether or not an armed conflict is international. For a discussion of this issue, see A. Cassese, ‘TheNicaraguaandTadicTests Revisited in Light of the ICJ Judgment on Genocide in Bosnia’,European Journal of International Law, Vol. 18, No. 4, 2007, pp. 649–668.
4 ICTY,Prosecutorv.Tadic, Judgment (Appeals Chamber), above note 2, para 137; see also paras 120 and 131. See also ICTY,Prosecutorv.Naletilic, Case No. IT-98-34-T, Judgment (Trial Chamber), 31 March 2003, para 198. For an analysis of this case law, see J.G. Stewart, ‘Towards a Single Definition of Armed Conflict in International Humanitarian Law: a Critique of Internationalized Armed Conflict’, International Review of the Red Cross, Vol. 85, No. 850, pp. 323 ff.; A. Cullen,The Concept of Non-International Armed Conflict in Non-International Humanitarian Law: A Study on Thresholds of Applicability, Thesis, University College, Galway, 2007, pp. 229 ff.
First, there are declared wars, implying that the state of war is recognized officially by the parties concerned. Second, there are other forms of inter-State armed con-flict, whose existence does not depend on how the parties define them. While the concept of war already exists in the oldest treaties of international humanitarian law,5the 1949 Conventions introduced the concept of armed conflict into this legal regime for the first time. Through this semantic contribution, those who drafted those instruments wanted to show that the applicability of international humani-tarian law was henceforth to be unrelated to the will of governments. It was no longer based solely on the subjectivity inherent in the recognition of the state of war, but was to depend on verifiable facts in accordance with objective criteria.
Thanks to that contribution in 1949, international armed conflict thus became established as a concept governed by the principle of effectiveness. The relevant rules apply when certain specific factual conditions are met.6
As for the nature of those conditions, it is generally acknowledged that it must be evaluated freely, as the level of intensity required for a conflict to be subject to the law of international armed conflict is very low.7Situations envisaged by the relative instruments merely need to exist. Thus ‘as soon as the armed forces of one State find themselves with wounded or surrendering members of the armed forces or civilians of another State on their hands, as soon as they detain prisoners or have actual control over a part of the territory of the enemy State, then they must comply with the relevant convention’.8It is, however, not necessary for the conflict to extend over time or for it to create a certain number of victims.9In other words, an international armed conflict exists, as recalled by the ICTY, ‘whenever there is a resort to armed force between States’.10To be more precise, it might be said that that is the case when the circumstances are characterized by hostility between the parties. The attack must be motivated by the intention to harm the enemy, thus
5 See, for example, Arts. 4, 5 and 6 of the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 22 August 1864.
6 See J. Pictetet al.(eds),Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field: Commentary, Geneva, ICRC, 1952, p. 32; R. Kolb,Ius in bello, Le droit international des conflits arme´s, Basel/Brussels, Helbing and Lichtenhahn/Bruylant, 2003, pp. 72 ff.
7 J. Pictetet al.(eds), above note 6, p. 34; see also D. Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’,The Hague Academy Collected Courses, Vol. 63, 1979-II, p. 131; H.-P. Gasser, ‘International Humanitarian Law: an Introduction’, separate print from Humanity for All: the International Red Cross and Red Crescent Movement, Henri Dunant Institute, Geneva, 1993, p. 24; E. David,Principes de droit des conflits arme´s, Bruylant, Brussels, 2008, p. 122; Kolb, above note 6, p. 73.
8 H.-P. Gasser, above note 7, pp. 22–23.
9 Some authors argue, however, that a distinction must be established between international armed con-flict (reaching a certain level of intensity) and other forms of hostile actions amounting to ‘incidents’,
‘border clashes’ or ‘skirmishes’ only. See International Law Association,Draft Report, Initial Report on the Meaning of Armed Conflict in International Law, Rio de Janeiro Conference, 2008, pp. 9–10 and 23–24.
10 ICTY,Prosecutorv. Tadic, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 70. See also ICTY,Prosecutorv. Mucic´ et al. (Cˇ elebic´i Camp), Case No. IT-96-21, Judgment (Trial Chamber), 16 November 1998, para 184: ‘le recours a` la force arme´e entre E´tats suffit en soi a` de´clencher l’application du droit international humanitaire’. This definition has since been taken up by other international bodies. See for example: Commission of Inquiry on Lebanon, Report pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006, para 51.
ruling out cases in which the use of force is the result of an error (involuntary incursion into foreign territory, wrongly identifying the target, etc.). Similarly, an international armed conflict does not exist when the targeted State has given its consent for a third State to take action in its territory (for example, to fight a non-governmental armed group).11
Since the adoption of Additional Protocol I of 1977, the field of application of the law of international armed conflict has ceased to be limited to inter-State conflictsstricto sensu and also encompasses conflicts between government forces and some non-governmental groups, i.e. peoples fighting in the exercise of their right of self-determination. The Protocol stipulates that the situations targeted by Article 2 common to the 1949 Geneva Conventions include ‘armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as en-shrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’.12
The scope of this provision raises a number of questions of interpretation, beginning with the precise definition of the ‘peoples’ concerned and the criteria which make it possible to distinguish those situations of armed conflict from that covered by Article 3 common to the 1949 Geneva Conventions and their Additional Protocol II.13 The two instruments referred to in Article 1(4) of Additional Protocol I are actually couched in terms that are too general to allow fully satisfactory answers to be derived from them. Moreover, it is difficult to find additional clarification in actual practice because the scenario referred to in that Article has never been officially recognized, particularly as the States that might be concerned did not ratify Additional Protocol I. The interested reader can make useful reference to the commentaries already devoted to that particular type of armed conflict.14
Occupation
When one of the belligerents succeeds in gaining the upper hand over his adver-sary, an international armed conflict may take the form of occupation.15 In the words of Article 42 of the 1907 Hague Regulations, ‘territory is considered occupied
11 For the opposite view, see David, above note 7, p. 127.
12 Additional Protocol I, Art. 1(4).
13 See the section on the law of non-international armed conflicts below. See also M. Bothe, K.J. Partsch, W.A. Solf,New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague, 1982, pp. 45–52.
14 See, in particular, D. Schindler, above note 7, pp. 133–144; Y. Sandozet al. (eds),Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva/The Hague, 1987, paras 66–118; E. David, above note 7, pp. 184–198.
15 For a more detailed study of the notion and the law of occupation, see Y. Dinstein,The International Law of Belligerent Occupation, Cambridge University Press, Cambridge, 2009; R. Kolb, S. Vite´,Le droit de l’occupation militaire: perspectives historiques et enjeux juridiques actuels, Bruylant, Brussels, 2009;
Y. Arai-Takahashi,The Law of Occupation: Continuity and Change of International Humanitarian Law, and its Interaction with International Human Rights Law, Martinus Nijhoff, The Hague, 2009.
when it is actually placed under the authority of the hostile army’ (our emphasis).
For occupation in the meaning of this provision to exist, two conditions must be fulfilled: (a) the occupier is able to exercise effective control over a territory that does not belong to it; (b) its intervention has not been approved by the legitimate sovereign.16 Effective territorial control, which is at the heart of the concept of occupation, implies that a substitution of powers may take effect. That condition is fulfilled when, first, the overthrown government is unable to exercise its authority and, second, the occupying Power is in a position to fill that gap by exerting its own power.17This condition implies in principle that enemy troops should be deployed in the territory concerned and succeed in imposing the minimum stability that will allow them to exercise their responsibilities deriving from the law of occupation. As for the second criterion, the absence of consent, it must be understood in fairly broad terms. In particular, it is not limited to cases in which power is seized as a result of hostilities. Article 2(2) of the Fourth Geneva Convention of 1949 com-plements the 1907 definition by clarifying that the relevant rules apply even if the occupation ‘meets with no armed resistance’.
In some cases, territorial control is not exercised directly by the occu-pation forces but via a puppet government or another form of subordinate local power.18 However, it is difficult to evaluate on a case-by-case basis the degree of influence required for this scenario to actually constitute occupation, as any in-terference in the affairs of a third State does not necessarily mean that occupation exists. Relations between the local authorities and the foreign forces vary in in-tensity depending on the circumstances and always reveal a certain reciprocal influence – or even a degree of consultation – in the decision-making process. To resolve this question, the ICTY retains – in this case, too – the criterion of ‘overall control’. Occupation exists when a State has ‘overall control’ of the local agents actually exercising ‘effective control’ over the territory in question.19 This is, for example, the pattern of the present situation in Nagorno-Karabakh. Azerbaijan has no longer been able to exercise its sovereignty in that area since the war with its
16 See, in particular: M. Bothe, ‘Beginning and End of Occupation’, Current Challenges to the Law of Occupation, Proceedings of the Bruges Colloquium, 20–21 October 2005, No. 34, Autumn 2004, pp. 28–32.
See also E. Benvenisti,The International Law of Occupation, Princeton University Press, Princeton, 1993, p. 4. The author defines occupation as ‘the effective control of power (be it one or more states or an international organisation, such as the United Nations) over a territory to which that power has no sovereign title, without the volition of the sovereign of that territory’.
17 See, in particular, United Kingdom Ministry of Defence,The Manual of the Law of Armed Conflict, Oxford University Press, Oxford, 2004, para 11.3; ICJ,Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congov.Uganda), Judgment, ICJ Reports 2005, para 173; ICTY, Prosecutor v. Naletilic, above note 4, para 217; A. Roberts, ‘What is Military Occupation?’, British Yearbook of International Law, Vol. 55, 1984, pp. 249 and 300.
18 See United Kingdom Ministry of Defence, above note 17, para 11.3.1. See also ICTY,Prosecutorv. Tadic, Case No. IT-94-1-T, Judgment (Trial Chamber), 7 May 1997, para 584: ‘the relationship of de facto organs or agents to the foreign Power includes those circumstances in which the foreign Power “occu-pies” or operates in certain territory solely through the acts of local de facto organs or agents’
(our emphasis).
19 ICTY,Prosecutorv.Blaskic, Case No. IT-95-14-T, Judgment (Trial Chamber), 3 March 2000, para 149;
ICTY,Prosecutorv.Naletilic, above note 4, paras 181–188, 197–202.
secessionist forces (supported by the Armenian army) which ended in its defeat in 1994. That territory is governed in practice (effective territorial control) by the
secessionist forces (supported by the Armenian army) which ended in its defeat in 1994. That territory is governed in practice (effective territorial control) by the